Opinion
(June Term, 1834.)
The act of 1798 (Taylor's Rev., Appendix) establishing a court of patents does not enable the patentee in a junior patent to repeal an elder one, although his entry was prior to that of the patentee in the latter.
This was a PETITION and SCIRE FACIAS to repeal a grant. On the Fall Circuit of 1832, at BUNCOMBE, before Swain, J., the facts were that the plaintiff had made his entry on 18 April, 1801, and obtained his grant on 12 December, 1812. The defendant made an entry which included a small part of the land covered by the grant to the plaintiff, on 22 January, 1807, and obtained a grant on 27 January following.
No counsel appeared for either party.
The presiding Judge, upon grounds wholly distinct from that taken in this Court, vacated the grant to the defendant, and he appealed.
The great importance of the questions arising under the act of 1798, in their bearing on individual rights and the public repose, and the doubts which seem (597) to be entertained upon them in the profession, has called for the most deliberate consideration of them, on the part of the Court. It is gratifying to us that numerous cases have been brought up, in which respectively those questions are presented in almost every varied form of which they are susceptible, and that some of them have been argued, at the bar, with an ability which has greatly aided the Court in arriving at conclusions satisfactory to themselves, and founded, as we think, on clear principles and authorities. In Crow v. Holland, ante, 417, we have held that a private person is not entitled to use the name of the State and her remedy, as sovereign, to repeal a grant, which did not aggrieve him at and by its emanation; in other words, that only an elder patentee, or he who had prior right, can sue a scire facias. In Hoyle v. Logan, ante, 495, we have further held that the privilege thus belonging to the elder title ceases with the right to which it is an incident; and therefore, that the party must continue to be entitled at the time of resorting to this remedy. Hence a bar to his right of entry, such as the statute of limitations or a conveyance from himself, is also a bar to the scire facias. For he is then no longer a person grieved, but an officious intermeddler.
The present is a mixed case. The relator's patent is junior to that of the defendant, but his entry is prior; and the question is whether that is, within the act of 1798. We think very clearly that it is not. We see no reason to doubt as between the State and the defendant, the land, when once entered, is no longer the subject of re-entry and of grant, if the first entry remains in force, and is finally perfected, more than it would be if the first enterer had also obtained the first grant. The second entry is void by the words and in the sense of the act of 1777, as well when there is a prior entry, then valid and on which the party, entitled by it, proceeds to complete an apparent title, as when such completion has taken place before the second entry or the grant founded on it. But the enquiry is against whom and in what sense is it void, and how is advantage to be taken of it? It is void against the State, being founded on the false suggestion, that the land (598) had not before been either granted or entered. Is it so as against the first enterer himself? The question implies in its terms, that the party's title consists of his entry alone; and the decisions already made show in that alone it must consist, for as a junior patentee he has no remedy under the act of 1798. The entry has never been considered as a legal title, or as at all constituting a part of the title at law.
It is not given in evidence in ejectment to support the grant by showing an authority in the officers of State to issue it. Perhaps this would at once be a conclusive answer to the petitioner, since this proceeding by scire facias is strictly at common law, and within the jurisdiction of the chancellor derived from that source. (4 Inst. 88). But there is a better reason, founded in the nature of the right by entry and the defences against it. It is an equity, which upon the payment of the purchase money, entitles the enterer to a grant, if applied for in due season; and also entitles him to call for a conveyance from one who has already obtained a grant for the same land, with notice of the previous entry. That such is the idea of the right by entry is clear from the many circumstances. Entries are not made the subjects of legal jurisdictions in any but the excepted case of a caveat, as provided in the act of 1779, which arose upon the discontinuance of the land offices. Decrees have been frequently made in equity for the first enterer against the first patentee. They repel the position that the grant as between those parties is void. They are founded in the very contrary position that they are not void, but that the grantee is a trustee for the claimant under the prior entry. The decree proceeds precisely on the same ground with one against a person, who, having notice of an unregistered deed, takes a conveyance to himself, and registers it first. The first deed is not made valid at law by the notice, nor the latter invalid, but the last purchaser is held to have taken his legal title by reason of the fraud, in trust for the (599) purchaser. For that reason the first enterer has relief in equity. It is founded on the proper ground, namely the fraud on himself. When he seeks relief on the different ground, that is to say, a fraud on the State, he must show himself to be the person to whom the law has delegated that privilege. By the act of 1798, it is to be exercised in a court of law; and it follows to our apprehension that he only can be said to have it, who can show a title which that Court can recognize, investigate and adjudge, and against which a mere equity on the other side would be no answer. We think the statute did not intend to enlarge the jurisdiction of the common law courts, so as to embrace some of the nicest equities, and involve them in the issues to be submitted to the jury. But what confirms us entirely in this opinion is that there is no necessity for such a jurisdiction, and therefore, it is not to be presumed that it was intended to be created by the general words, "persons aggrieved." The purpose was to give a remedy to those who had none before. The first enterer had at that time an adequate and complete one in equity. Two were not necessary; and either it must be supposed that two are given in the same case, or that a less perfect claim under the entry will be sustained at law than would authorize relief in equity; and neither supposition is admissible. There is also this farther reason: a court of equity measures its relief according to the rights of the parties and holds the defendant a trustee for the various persons entitled to the extent of their rights respectively. If the first entry be for a part only of the land granted, so far only is the title of the grantee defective and a trust declared. This is manifestly the justice of the case. But under the statute, the grant is void for the whole, if it be so as to any part, and the judgment is that it and the enrollment be revoked, annulled, cancelled and vacated. The case before the Court is an example of this kind. The grant to the defendant covers but a small part of the plaintiff's entry, and includes other lands not entered by him. A judgment against the defendant would avoid his grant in toto, while the (600) plaintiff has an equitable interest in only a portion of the land. To this the defendant must submit, in a case where the plaintiff has no other remedy but the one which cancels the grant; because his right must yield to the superior rights of the opposite party. But in putting a construction on the statute, as to the persons to whom this remedy is given, this is a sufficient reason for confining it to those who are without any, but under the statute.
The Court will not be understood as expressing an opinion, that the mere circumstance that the lands included in an elder patent or entry are converted in whole or in part by a younger one, does not render the latter void within the statute: For it is our purpose to avoid any determination beforehand upon the cases which the act embraces, or may be supposed to embrace.
We all think that for these reasons, the judgment of the Superior Court must be reversed, and judgment be rendered for the defendant, notwithstanding the verdict.
PER CURIAM. Judgment reversed.
Cited: O'Kelly v. Clayton, 19 N.C. 247; Miller v. Twitty, 20 N.C. 10; Hoyt v. Rich, Ib., 677; Plemmons v. Fore, 37 N.C. 314; Gilchrist v. Middleton, 107 N.C. 678; McNamee v. Alexander, 109 N.C. 245; Kimsey v. Munday, 112 N.C. 832; Janney v. Blackwell, 138 N.C. 439.